Sexual Offences - Rape

Updated - 23/01/08

Code for Crown Prosecutors - Considerations
The Law
- Definition of rape
- Registration of Sex Offenders
Charging Practice

Code for Crown Prosecutors - Considerations

Rape is so serious that a prosecution is almost certainly always required in the public interest.

The Law

Definition of rape

Definition of rape section 1 Sexual Offences Act 1956 (Archbold, 20-5)

The offence applies to the rape of a woman or the rape of another man.

The offence of rape was restated in Section 142 of the Criminal Justice & Public Order Act 1994 to include anal sexual intercourse with another man without consent. Where anal intercourse takes place without consent, you should charge rape contrary to section 1 of the Sexual Offences Act 1956 and not buggery contrary to section 12 of that Act.

Following R v R [1992] A.C. 599 and the removal of the word "unlawful" from the definition of rape it is clear that a husband may be prosecuted for raping his wife.

A boy under 14 is now capable in law of sexual intercourse - Sexual Offences Act 1993, sections 1 and 2 <Archbold 20-23>

A woman may be convicted as an aider and abettor.

Registration of Sex Offenders

Part 1 of the Sex Offenders Act 1997 applies <Archbold 20-271A>

Charging Practice

Where the victim is a woman and the intercourse is vaginal and anal, you should prefer separate counts of rape. You should include the words "per vaginam" or "per anum" as appropriate in the indictment.

Where more than one man has raped the victim on the same occasion, all the defendants should be indicted in the same count with no reference to aiders and abettors. For example:

X is raped by A whilst held down by B. The indictment will alleged that "A and B raped X". If the defendants then change places and B rapes X whilst being held down by A, the particulars will alleged "A and B, on an occasion other than in Count 1, raped X".

Specimen charges

Many cases involving allegations of sexual offences will provide you with a choice of charge and also a choice of the number of charges.

A case involving sexual intercourse over a period of time may disclose sexual offences in addition to rape. You will, therefore, select those charges that accurately reflect the course of conduct over the period in question. Specimen charges will be called for and you will select allegations which, as far as possible, represent the start and end of the conduct as well as suitable allegations during the period in question. However, in doing so you must ensure that the charges you select reflect the seriousness of the offence, give the court adequate sentencing power and enable the case to be presented clearly to the court.

<See Drafting the Indictment, Specimen counts (and other aspects) elsewhere in this guidance>

You should also be careful not to overload the indictment. For example, if a number of sexual offences are disclosed in relation to number of victims, you should try and restrict the number of counts in relation to each victim whilst adopting the same criteria for selecting the appropriate charges as set out in the Code for Crown Prosecutors.

Joinder

In cases concerning sexual offences with more than one victim, you will pay careful attention to the rules of joinder in Rule 9 Indictment Rules 1971 (Archbold 1-154a). Notwithstanding the court's power to sever under section 5(3) Indictments Act 1915, you will normally join in the same indictment counts founded on the same facts or forming part of a series of offences of the same or similar character. The fact that a judge may order separate trials should not deter you from applying the rules of joinder in cases where it is in the interests of justice to have all counts tried together.

Defence applications may be made to try the accused separately and to have separate counts considered in different trials. You should always try to argue that the matter should be heard together with reference to the cases of (R v P 1991 2AC 447) and (R v Downey 1995 1 CR App R 547). This is on the basis that the victim will not have to hive evidence on more than one occasion. For the approach the courts adopt in relation to severance in cases involving sexual misconduct refer to (Archbold 1-170).

Alternative charges

You should use alternative counts sparingly and only where there is doubt concerning the issues. For example, in the evidence to support penetration of a victim is unclear, an alternative count of attempt would be appropriate.

Evidential considerations

Rape can be a difficult offence to prove without a reliable admission. False and/or malicious complaints are sometimes made and you will need to exercise care when reviewing such allegations. Delay in reporting the offence and the character of the complainant will, in particular, need to be looked at with care.

Corroboration is not essential but is always looked for. You will need to look carefully at any medical or scientific evidence. However, it is important to note that eyewitness corroboration is rarely available given the very nature of the offence.

It is essential that you always bear in mind the fact that rape is an offence of grave personal violation and a decision not to prosecute should never be made without a thorough consideration of the background and circumstances. It is also important to discuss with the police the availability of further evidence.

R v Z [2000] 2 A.C. 483 - evidence of previous acquittals

When reviewing cases of rape and other sexual offences, you should bear in mind the House of Lords judgment in R v Z. In this case the House of Lords allowed evidence to be adduced of an earlier acquittal where it was probative of the offence being tried. The House held that provided a defendant was not placed in double jeopardy, evidence that was relevant on a subsequent prosecution was not inadmissible because it showed or tended to show that the defendant was, in fact, guilty of the offence of which he had been earlier acquitted, (Archbold 4-160).

Although R v Z was a rape trial, the principal applies to any offence including non-sexual offences.

Consent - sexual offences generally

Consent will be an important factor when deciding not only what offence to charge but also whether it is in the public interest to prosecute <refer to consents - rape offences, below in this section>. You will, therefore, need to consider this aspect of any case with great care. Sometimes consent is given, or appears to be given, but the law does not treat it as effective consent.

The law does not allow a person's consent to sexual activity to have effect in the following situations:

where the person giving consent did not understand what was happing and so could not give informed consent, for example in the case of a child or someone suffering from a severe mental disability;

where the person giving consent was under the relevant age of consent.

These two situations are different. In the first, the apparent consent is not treated as real consent because the person consenting did not understand enough to give real consent. This is a question of fact. In the second, consent is real as a matter of fact but the law does not allow it to count.

Consent - rape offences

Where the victim has consented in fact but not in law you may consider appropriate alternative offences. Example include offences such as incest or unlawful sexual intercourse (in the case of a female victim) or, where consensual intercourse with a male under the age of consent, the offence of buggery <refer to consent - sexual offences generally, above in this section>.

Character of victim - previous sexual history

Sections 41-43 of the Youth Justice & Criminal Evidence Act 1999 (Archbold 8-123k-123q) came into effect on 4 December 2000. The sections restrict the circumstances in which evidence or questions about a complainant's sexual behaviour beyond the circumstances of the alleged offence can be introduced in rape or in certain other sexual offence trials. It is essential that prosecutors are robust in dealing with applications under section 41.

At the trial of a person charged with a sexual offence as defined by section 62 of the YJCEA 1999 (Archbold 8-55x) no evidence may be adduced or questions asked in cross-examination by or on behalf of the accused about any sexual behaviour of the complainant except with the leave of the court, (Archbold 8-123k-123q).

Such evidence will only be permitted if statutory criteria are met and the court considers that it may reach an unsafe conclusion on an issue to be decided in the case if such evidence were not to be heard. Any questions asked or evidence to be adduced must relate to a specific instance of behaviour.

Procedure for application to cross examine on previous sexual history

Section 43 sets out the procedure to be adopted when applications are made under section 41. This involves adherence to time limits. The provisions are detailed and you should refer to <Casework Bulletin 32/2000> for detailed guidance.

When presenting cases it is vital to ensure that you are aware of section 41(5) so that evidence is not unintentionally adduced by the prosecution that will allow the defence the opportunity to seek to adduce evidence of sexual behaviour of the victim in rebuttal of that prosecution evidence.

Keeping the victim informed

CPS has a responsibility to ensure that the victim is made aware of the outcome of any ruling by the trial judge to adduce evidence of previous sexual behaviour. However, it will be important that the decision is communicated in such a way that it does not amount to coaching or rehearsing of the evidence of the witness. Prosecutors should also ensure that the defence advocate is made aware of the extent of the information that is to be given to the complainant.

If the court grants leave to cross-examine a complainant about previous sexual behaviour, it will be essential to review the position relating to special measures (when they are available). It may be necessary to make an application to the court for one or more of the special measures provided by the YJCEA or to apply to vary a pre-existing direction.

In reaching this decision it will be important to obtain the views of the witness about how the evidence may be presented, given that the nature of the potential cross-examination may be more intimate than was first anticipated.

R v A - complainant's sexual history (House of Lords)

Sections 41-43 of the YJCEA were considered in the House of Lords case of R v A (17 May 2001). The House held that a prior consensual relationship between the complainant and the defendant might in some circumstances be relevant to the issue of consent. However, all the Law Lords accepted that the complainant must not be treated unfairly. The judgment emphasizes "the presumption of exclusion" under the YJCEA. Consequently, prosecutors should encourage the court to consider section 41 in the context of the judgment overall. To do otherwise may lessen the practical effect of the reforms contained in section 41.

You should refer to <Casework Bulletin 21/2001> for detailed guidance on R v A.

In R v M [EWCA] 1644, the Court of Appeal considered an interlocutory application that a previous sexual relationship with a third party was relevant to his defence. The Court of Appeal rejected this, considering that to allow the cross-examination of this would be to "elicit material by the backdoor to impugn the credibility of the complainant as a witness." This is, therefore, a very useful case for prosecutors.

Casework Location

Rape, (including buggery offences - <see Buggery/Gross Indecency between men, elsewhere in this guidance>) involving unusual violence or repeated attacks, such as a serial rapist, should be referred to the CCP for liaison with Casework Directorate regarding the location of the case, <see Cases to be referred or notified to the CCP, elsewhere in this guidance>

How to use this Legal Guidance

CPS Public Consultations